"Will you rule out nominating to the Supreme Court people who believe
that Roe v. Wade was correctly decided?"

Among those not heard from was George W. Bush, but he already has
said he would not require an ideological litmus test for the high court. Also
not answering that question were Lamar Alexander, Elizabeth Dole and
John McCain.

Orrin Hatch's response was that although he is pro-life, he also agrees with
Abraham Lincoln that:

"We cannot ask a man what he will do [on the court], and if we should,
and he should answer us, we should despise him for it."

The other candidates straightforwardly -- indeed, ardently -- declared that
their Supreme Court nominees would have to be unequivocally pro-life.
Gary Bauer challenged "all my GOP rivals" to join him in pledging "to
nominate to the court or the federal bench judges who are unambiguously
pro-life."

Lest there be the slightest doubt of Bauer's convictions, he added: "I will
not sacrifice one unborn baby for political gain."

Pat Buchanan declared: "Any president who strongly believes in life must
appoint pro-life justices, or his commitment to life is hollow."

Steve Forbes invoked a higher authority to explain his undeviating position:
"The right to life is not a state-endowed right. It is the gift of God." Said
Bob Smith: "I will never nominate a person for any level of the judiciary
who believes that Roe passes constitutional muster."

Alan Keyes and Dan Quayle answered yes to the litmus-test question,
without any further elaboration.

Clearly the candidates who gave the password to those with visions of
joining this honorable court are highly principled. They see no problems of
due process -- of fairness -- for pro-choice litigants before the court.
Attorneys representing such clients will at least know which votes no
powers of fact and argument can move.

Is this test of admission to the high court any different from a president's --
agreeing with William Brennan and Thurgood Marshall -- extracting from a
nominee to the court a pledge that he or she will, without exception, always
vote for a stay of execution? And will always vote that all death penalty
convictions be reversed because they violate the "cruel and unusual
punishment" prohibition in the Eighth Amendment.

As a pro-lifer and an absolutist opponent of capital punishment, I wonder
how those Republican candidates -- who bravely refused to sidestep the
Human Events inquiry -- fail to see where their subversion of elementary
judicial independence will lead.

A future president may believe that a woman's right to choose is so
unequivocally constitutional that nominating a pro-lifer betrays a president's
own oath of office.

Abraham Lincoln could have also excoriated any president who tampers
with judicial independence by accepting the Queen of Hearts' credo in
"Alice's Adventures in Wonderland": "Sentence first, verdict afterwards."

Not only Republican presidential aspirants, however, have insisted on
fixing a vote on the court. In 1992 Bill Moyers was interviewing, on
television, presidential candidate Bill Clinton. The Arkansas governor was
very concerned about a recent statement by Justice Harry Blackmun:
"We're just one judge away from repealing Roe."

"I believe," Clinton told Moyers, "that most of us would like to see
abortion not criminalized again."

Moyers then asked: "Will you see to it if you're elected that the fifth judge
[on an abortion case], your first appointee, will be a strong supporter of
Roe?"

Clinton's answer: "Yes."

Moyers: "Is that not a litmus test?"

Clinton: "Yes, it is. It makes me uncomfortable. But I would want the first
judge I appointed to believe in the right to privacy and the right to choose."

Sure enough, Roe has not been in danger from Justices Ruth Bader
Ginsburg and Stephen Breyer.

Is Al Gore also going to state forthrightly that, like Clinton, he will insist
that his nominees swear allegiance to Roe v. Wade? Maybe he and
George W. Bush can engage in a debate on judicial independence and on
whether President Clinton was right to require a quid pro quo for a seat on
the high
court.

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.

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